In its final week of the recent session, the US Supreme Court
handed
down two decisions of extreme importance. In Stogner v.
California
(01-1757) the court ruled that the government can’t retroactively void
statutes of limitations in criminal cases. In Lawrence v.
Texas
(02-102) it ruled that it is no longer a crime to be gay.

Technically the Lawrence decision
held
that the Texas statute which had made it a crime for two persons of the
same sex to engage in certain intimate sexual conduct violates the Due
Process Clause of the 14th Amendment.

In a decision filled with unusually strong and unequivocal
phrases Justice
Anthony Kennedy wrote: “The petitioners are entitled to respect for
their
private lives. The state cannot demean their existence or control their
destiny by making their private sexual conduct a crime.” The drafters
of
the Constitution, he said, “knew times can blind us to certain truths
and
later generations can see that laws once thought necessary and proper
in
fact serve only to oppress. As the Constitution endures, persons in
every
generation can invoke its principles in their own search for greater
freedom.”

This decision was joined by Justices Stevens, Souter, Ginsburg,
and
Breyer. Justice O’Connor concurred in overturning the Texas law, but
did
so under the narrower position taken in Romer v. Evans
(which
held that the state has no compelling interest in singling out gays for
discrimination.) This was not surprising, as she had voted with the
majority
in the Bowers v. Hardwick case in 1986.
Speaking of that earlier case, Justice Kennedy wrote:
“Bowers
was not correct when it was decided and it is not correct today. It
ought
not to remain binding precedent. Bowers v. Hardwick
should
be, and is now, overruled.”

Because of the grounds upon which the majority decided it,
because of
the size of the majority and because of the strength of arguments given
(even Justice Thomas, in his dissent from the majority opinion called
this
law “uncommonly silly”!) This is going to create hugely favorable
shifts
in the legal landscape for gays & lesbians and, eventually, for
everyone.

Consider the “Don’t Ask, Don’t Tell” policy banning gays in the
military
if they do not keep their sexual orientation a secret even from their
family.
The military’s prohibition of homosexual conduct is rooted in the
federal
sodomy statute codified as Article 125 of the Uniform Code of Military
Justice (UCMJ). That statute applies to both heterosexual and
homosexual
sodomy. Had the majority agreed with Justice O’Connor that this was an
equal protection issue, the statute would remain in force. As it has
now
been effectively overturned, the military policy must be seriously
called
into question.

Consider adoptions by gays and lesbians. In states with
anti-sodomy
laws such adoptions were often impossible because the courts assumed
gay
people engaged in sexual activity the state declared to be criminal.
The
courts can no longer do this.

Consider how difficult it has been to get sexual orientation to
be covered
under hate crimes legislation. The thinking seemed to be that if
homosexuals
were illegal, they didn’t deserve to be protected.

The Kansas
"Romeo
and Juliet"Case

Consider the case of Matthew Limon, whose 17 year sentence
(for
having, at age 18, consentual sex with a 14 year old boy) was vacated
and
returned to the Kansas courts “for further consideration in light
of
Lawrence v. Texas.” Such wording is effectively an
instruction
to set aside the prison term imposed on Mr. Limon, and perhaps to take
a close look at what has been called the state’s “Romeo and Juliet
Law.”
(The statute gained that moniker because it regards oral sex
differently
when it involves heterosexual teenage couples, as opposed to homosexual
ones. When one member of the couple is aged 14 to 16 and the other is
older,
the act is statutory rape under the Kansas law and the most common
penalty
is probation if the two are heterosexual. But probation was not
available
to same-sex teenage couples.

Matthew Limon was one week past his 18th birthday in early 2000
when
he performed oral sex on a 14-year-old boy at the center for
developmentally
disabled young people where they both lived. No violence or coercion
was
involved.

Had Mr. Limon performed oral sex on a 14-year-old girl, he could
have
received a prison sentence of about 15 months, and possibly just
probation.
Instead, he is now about three years into a 17-year sentence in the
Ellsworth
Correctional Facility. Under his sentence, he was also ordered to
register
as a sex offender upon his release.

The ACLU took up Mr. Limon’s case. It did not challenge the
state’s
right to punish older teenagers for having sex with younger ones, but
argued,
rather, that the rules should not be different for same-sex couples and
heterosexual couples. Lawrence v. Texas makes that
argument compelling.)

Two great quotes from the various news articles on the Lawrence
decision: “It wasn’t a gay sex ruling it was an anal sex ruling. Gay
people
are not the only people that have anal sex.” “If morality is the
issue, where are the laws against adultery?”

In Stogner v. California
the court
held that “a law enacted after expiration of a previously applicable
limitations
period violates the Ex Post Facto Clause when it is applied to revive a
previously time-barred prosecution.” In this case the vote was 5-4,
with
Justice Breyer writing for the majority joined by Justices Stevens,
O’Connor,
Souter & Ginsburg and Justice Kennedy writing a dissent joined by
Justices
Rehnquist, Scalia & Thomas.

Although not nearly as sweeping a decision as Lawrence v.
Texas,
this was important because it drew a metaphoric line in the sand saying
that the court was unwilling to deprive accused persons of an important
(and long-standing) legal protection simply because of what they were
accused
of. We hope it will also give legislators a chance to see that the
recovered
memory ‘science’ underpinning such laws have been seriously
discredited.

To hear the right-wing whingers piss and moan about this
decision, you’d
think the Supreme Court had given every “child molestor” in prison a
Get
Out Of Jail Free card. Stuff & nonsense. Understand that the court
did not say that there had to be a statute of limitations on sex crimes
nor what the length of time such a statute could allow. It simply said
that if a state had set a specific time limit it could not go back and
change the rules afterwards:

California’s law extends the time in which prosecution
is allowed,
authorizes prosecutions that the passage of time has previously barred,
and was enacted after prior limitations periods for Stogner’s alleged
offenses
had expired. Such features produce the kind of retroactivity that the
Constitution
forbids. First, the law threatens the kinds of harm that the Clause
seeks
to avoid, for the Clause protects liberty by preventing governments
from
enacting statutes with “manifestly unjust and oppressive” retroactive
effects.
Calder v. Bull, 3 Dall. 386, 391.
Second, the law falls literally within the categorical descriptions
of ex post facto laws that Justice Chase set forth more than 200 years
ago in Calder v. Bull, which this Court has recognized
as
an authoritative account of the Clause’s scope, Collins v.
Youngblood,
497 U. S. 37, 46. It falls within the second category, which Justice
Chase
understood to include a new law that inflicts punishments where the
party
was not, by law, liable to any punishment.
Third, numerous legislators, courts, and commentators have long
believed
it well settled that the Clause forbids resurrection of a time-barred
prosecution.
The Reconstruction Congress of 1867 rejected a bill that would have
revived
time-barred treason prosecutions against Jefferson Davis and others,
passing
instead a law extending unexpired limitations periods. Roughly
contemporaneous
State Supreme Courts echoed the view that laws reviving time-barred
prosecutions
are ex post facto. Even courts that have upheld extensions of unexpired
statutes of limitations have consistently distinguished situations
where
the periods have expired, often using language that suggests a
presumption
that reviving time-barred criminal cases is not allowed. This Court has
not previously spoken decisively on this matter. Neither its
recognition
that the Fifth Amendment’s privilege against self-incrimination does
not
apply after the relevant limitations period has expired, Brown
v.
Walker, 161 U. S. 591, 597-98, nor its holding that a Civil War
statute retroactively tolling limitations periods during the war was
valid
as an exercise of Congress’ war powers, Stewart v. Kahn,
11 Wall. 493, 503-04, dictates the outcome here. Instead, that outcome
is determined by the nature of the harms that the law creates, the fact
that the law falls within Justice Chase’s second category, and a long
line
of authority.

Because of all the hype about sex scandals involving Catholic priests,
clergy abuse investigations under this law have been among the most
widely
publicized as people came forward to report sometimes decades-old
molestations.
But the high court’s decision affects other cases as well, and state
authorities
said about 800 cases not involving priests will have to be reviewed.

The Bush administration had argued that a ruling against
California
would threaten the Patriot Act, which retroactively withdrew statutes
of
limitation in terrorism cases involving hijackings, kidnappings,
bombings
and biological weapons.

The not so wonderful decision came in the case
of United
States et al. v. American Library Association, Inc., et al
(02-361)
This was an appeal by the government of a decision by a Federal
District
Court declaring a section of the Children’s Internet Protection Act
(CIPA)
unconstitutional. The contested section forbade public libraries from
receiving
federal assistance for Internet access unless they install software to
block obscene or pornographic images and to prevent minors from
accessing
material harmful to them. The court affirmed (6-3 Rehnquist
joined
by O’Connor, Scalia and Thomas with Kennedy and Breyer concurring and
Stevens,
Souter and Ginsburg dissenting) the ancient legal maxim “them what pays
the piper calls the tunes.” — saying that since libraries were not
required
to accept federal funds and since patrons could ask that the filters be
disabled, the law did not violate the 1st Amendment.

Since many libraries have chosen to forego the federal funds
this ruling
will probably not have the impact envisioned by either its proponents
or
opponents. Also, given that this was Congress’ third (and weakest by
far)
attempt to regulate porn on the net and it showed no inclination to let
the issue go, this is probably the least odious legal outcome we could
reasonably expect.

Before we sing hosannas in praise of the court’s rulings this
term,
let us not forget Smith v. Row (01-729) which held that
because
the Alaska Sex Offender Registration Act is nonpunitive, its
retroactive
application did not violate the Ex Post Facto Clause, or Connecticut
Dept. of Public Safety v. Doe (01-1231) upheld Connecticut’s
implementation
of Megan’s Law (saying “mere injury to reputation, even if defamatory,
does not constitute the deprivation of a liberty interest”) or Ewing
v. California (01-6978) and Lockyer v. Andrade
(01-1127)
which together upheld California’s particularly vicious 3-strikes law.
Still, for all they got wrong, they got two big ones right.

Schools
Are Not
Very Gay Places

One area where the Romer and Lawrence
decisions
can have an enormous impact is the intersection of gays and schools.
Far
too many school admistrators & teachers feel it is acceptable to
elevate
their personal prejudice to school policy, official or not.

There is a case in Arkansas where administrators have gone to
extraordinary
lengths to punish a student, Thomas McLaughlin, for being gay,
including
outing him to his parents, forcing him to read passages of the Bible,
calling
him “abnormal” and “unnatural,” and disciplining him for mentioning
between
classes to a female friend that he thought another boy was cute.

“My school forced me out of the closet when I should have been
allowed
to come out to my family on my own terms and when I thought it was the
right time. And now the school has been trying to shove me back into it
ever since,” McLaughlin said. “I’m through with being silenced, and I
don’t
want this happening to other gay kids at my school.”

Now that McLaughlin has become more open about his sexual
orientation,
the school has made numerous attempts to punish and silence him for
being
out at school:

• One teacher called a conference with
McLaughlin’s
parents and the principal because she objected to his being open about
being gay. During the meeting, the principal concurred that she was
opposed
to McLaughlin talking at school about being gay.

• A different teacher ordered McLaughlin not to
discuss
his sexual orientation, saying that she found it “sickening,” and later
called his mother to complain about his homosexuality.

• School officials preached their religious views
on homosexuality
and forced him to read aloud from the Bible in clear violation of the
establishment
clause of the First Amendment. This was done as punishment after
McLaughlin,
who is himself a Christian, disagreed with a teacher for calling him
“abnormal”
and “unnatural.”

• In violation of McLaughlin’s free speech rights,
the school
suspended him for two days for telling other students about being made
to read the Bible in school. The principal and assistant principal also
told McLaughlin that if he told any of his friends why he was
suspended,
they would recommend that he be expelled.

• McLaughlin is not even allowed to participate in
typical
teenage conversations about crushes. In January he was disciplined for
talking between classes with a female friend about a boy they both
considered
“cute.” He was disciplined; his friend was not.

“Thomas McLaughlin’s school has completely overstepped the boundaries
of the law in the way it has treated him,” said Rita Sklar, Executive
Director
of the ACLU of Arkansas. “School officials have no place trying to
convert
a student’s religious beliefs to their own, and they certainly have no
place using religion as a way to punish students.”

The case is being handled by the ACLU’s Lesbian and Gay Rights
Project
and attorney Kathy Hall of Little Rock.

Two teens attending Tawas Michigan Area Schools- Krista Starr, a
14-year-old
junior high school student, and Robert Wells, a 17-year-old senior -
have
found themselves under vicious homophobic attacks from fellow students:
graffiti; bodily assaults that left them bloodied; death threats.
School
administrations responded by suspending and punishing the lgbt victims.

The school administration has done everything but forbid Krista
to set
foot on the grounds.

“She only gets an hour of school,” her mother said. “She can
only come
in three days a week, after regular hours when the other kids are not
around.
She has been given a desk in the principal’s office. She is not to go
in
the halls, the bathroom, to her locker, or around any of the other
kids.
She cannot attend any school dances. We cannot deal with this anymore.”

A letter signed by the principal, William J. Grusecki, threatens
Krista
with truancy if she fails to comply with these rules.

“The bishop of our church came to our home to discuss this
situation,”
Starr says. “He told us that the church could not stand behind us and
that
Krista was going to burn in Hell. We were asked to leave the church. We
have been asked to leave our home.”

Robert has also received numerous death threats in Tawas and was
once
almost intentionally run over by a car filled with taunting assailants.
Hooligans hurling anti-gay obscenities have frequently awakened the
family
in the middle of the night, and their car has been “keyed.” His mother
said she spent hundreds of dollars on a bodyguard to accompany her son
and his boyfriend Drew Goeke to the Homecoming Dance last October to
guarantee
their safety.

In Los Angeles, Ashly Massey, a 15-year-old female student who
says
she was banned from gym class because she is a lesbian filed a
lawsuit
against her instructors and the school district, accusing them of
discrimination.

Massey and her mother, along with the American Civil Liberties
Union
and the National Center for Lesbian Rights claim that in March, when
Ashly
was an 8th grade student at Coombs Middle School in Riverside County,
she
was removed from physical education class and made to sit in the school
principal’s office.

The suit alleges that Ashly’s gym teacher told the girl’s
mother, Amelia
Massey, that her daughter’s sexual orientation made other girls in the
class “uncomfortable being around Ashly in the locker room.”

The gym teacher allegedly told Ashly she was no longer allowed
to go
to P.E. class, and for the next week and a half Ashly said she was made
to sit in the principal’s office instead of participating in the class.

But, in our system, undifferentiated fear or
apprehension of
disturbance is not enough to overcome the right to freedom of
expression.
Any departure from absolute regimentation may cause trouble. Any
variation
from the majority’s opinion may inspire fear. Any word spoken, in
class,
in the lunchroom, or on the campus, that deviates from the views of
another
person may start an argument or cause a disturbance.” AARON FRICKE v.
RICHARD
B. LYNCH, Principal of Cumberland High School Civ. A. No. 80-214 UNITED
STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND 491
F. Supp. 381; 1980 U.S. Dist. LEXIS 11770 May 28, 1980.